U.S. v. Stephens

• Decision Date: 19 June 1992
• Docket Number: No. 91-4472,91-4472
• Citation: 964 F.2d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles G. STEPHENS, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 424

964 F.2d 424

UNITED STATES of America, Plaintiff-Appellee, v. Charles G. STEPHENS, Sr., Defendant-Appellant.

No. 91-4472.

United States Court of Appeals, Fifth Circuit.

June 19, 1992.

Celia R. Cangelosi, Baton Rouge, La. (court-appointed), for defendant-appellant.

Josette L. Cassiere, Joseph S. Cage, Jr., U.S. Atty., Larry J. Regan, Asst. U.S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Louisiana.

Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Charles G. Stephens, Sr. was charged with one count of conspiracy to violate the Hobbs Act in violation of 18 U.S.C. § 1951, and four counts of substantive violations of the Hobbs Act. On appeal, Stephens argues that there is insufficient evidence to support his conviction under the Hobbs Act, that the district court abused its discretion in admitting coconspirator hearsay testimony at trial, that the prosecution did not timely disclose tapes which contained exculpatory evidence, and that the district court abused its discretion in admitting evidence from his employer. Finding no error, we affirm.

I

Stephens was indicted on August 15, 1989 and charged with one count of conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951, ¹ and four counts of substantive violations. ² After a jury trial, Stephens was found guilty on all counts. He unsuccessfully moved for a judgment of acquittal and for a new trial. ³

From 1982 through 1988, Stephens was employed by Guillory Bonding Company as a bail bondsman in the Vernon Parish area of Louisiana. He was also a town alderman in New Llano, Louisiana from June 1986 through May 1988. According to the Indictment, Stephens conspired with members of the New Llano police department to extort money from travelers passing through the town, in exchange for the dismissal or reduction of driving while intoxicated ("DWI") or operating while intoxicated ("OWI") charges, the return of the travelers' driver's licenses and the release of their vehicles from impoundment, and obtaining bond without being jailed. ⁴ This conspiracy centered around the New Llano police department's traffic stops--the New Llano Chief of Police required each police officer to make at least sixty stops a month resulting in arrest for DWI or OWI.

The stops occurred mainly on six-tenths of a one-mile stretch of Highway 171, which runs through the town of New Llano. Local residents were rarely stopped--truck drivers, transients and military personnel were stopped most often. After the individuals were stopped, they were given a field sobriety test. If the individual failed the test, he was arrested for DWI/OWI and other traffic offenses.

When the vehicles were towed, they were almost always towed by B & B Towing. Other towing companies were allowed little opportunity to tow such vehicles. For every vehicle that B & B Towing towed, it made a "kickback" of $10.00 to the New Llano Chief of Police. ⁵ Once at the police station, most of the individuals arrested had only the option of using Stephens of Guillory Bonding Company to make bond arrangements. They were "booked" and remained in the jail until bond arrangements were completed. B & B Towing did not release any of the individuals' cars until Stephens notified Bill Metlin, one of the owners of B & B Towing, that Stephens had been paid for his bail bonding services.

The individuals apparently would pay the amount requested by Stephens, and then they were permitted to leave. The standard fee charged was $150.00 for three offenses. ⁶ The total of the bonds for three offenses was usually $1,000.00 ($500.00 for the DWI/OWI, and $250.00 per other offense). The Government established that each surety bond was represented by a power of attorney. The New Llano Chief of Police required a separate power of attorney on each offense, resulting in a total fee of $150.00 for the three bonds. Stephens, however, did not adhere to this policy, but usually only attached one power of attorney aggregating all three offenses, which meant that he should have only charged ten percent--$100.00--of the total bond. Stephens would not account for this cash, or report less than the amount he actually received.

II

Stephens argues that his convictions for conspiracy to commit extortion in violation of the Hobbs Act, as well as his convictions for the substantive convictions under the Hobbs Act, were not supported by sufficient evidence. In reviewing a challenge to the sufficiency of the evidence in a criminal case, it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. See United States v. Hall, 845 F.2d 1281, 1283 (5th Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988) (quotation omitted). We "review the evidence in the light most favorable to the government, making all reasonable inferences and credibility choices in favor of the verdict." United States v. Evans, 941 F.2d 267, 271-72 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 451, 116 L.Ed.2d 468 (1991) (citation omitted).

A.

Stephens was convicted of Count 1 of the indictment, which alleged a conspiracy to commit extortion in violation of the Hobbs Act. ⁷ After trial, Stephens filed a "Motion For Judgment of Acquittal and in the Alternative For A New Trial", alleging insufficiency of the evidence to sustain the conspiracy conviction. On appeal, he argues that the district court incorrectly denied this motion. ⁸

To convict for criminal conspiracy under 18 U.S.C. § 1951, the jury must find an agreement between two or more persons to commit a crime, and an overt act by one of the conspirators to further the conspiracy. See United States v. Villarreal, 764 F.2d 1048, 1051 (5th Cir.) (citations omitted), cert. denied, 474 U.S. 904, 106 S.Ct. 272, 88 L.Ed.2d 233 (1985); see also United States v. Stodola, 953 F.2d 266, 270 (7th Cir.1992) (conspiracy to commit extortion involves knowingly joining a combination or confederation of two or more persons formed for the purpose of committing extortion by their joint efforts) (citation omitted), petition for cert. filed (Apr. 6, 1992). "Proof of a conspiracy does not require direct evidence of an actual agreement between the co-conspirators, but may be inferred from circumstantial evidence." United States v. Wright, 797 F.2d 245, 253 (5th Cir.) (citation omitted), reh'g denied, 804 F.2d 843 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987); see also United States v. Di Carlantonio, 870 F.2d 1058, 1061-62 (6th Cir.) (question is whether a reasonable jury could have found defendants conspired to extort money from individuals, and whether, if successful, this scheme would have affected commerce by depleting the assets of an enterprise in interstate commerce), cert. denied, 493 U.S. 933, 110 S.Ct. 323, 107 L.Ed.2d 313 (1989).

The evidence in this case amply indicates the existence of a conspiracy. The New Llano Chief of Police had his officers make a minimum of sixty stops per month for DWI/OWI offenses and other traffic violations. B & B Towing did the majority of the towing of these vehicles, despite the existence of other local towing companies and a local ordinance that required the rotation of wrecker services. For being allowed to do the towing, B & B Wrecking Service paid the New Llano Chief of Police $10.00 per vehicle, which was later increased to $15.00 per vehicle.

Stephens was good friends with the New Llano Chief of Police. When the New Llano Chief of Police was not in the office, the police officers were told to contact Stephens if they had any problems. When one of the individuals was in jail for a traffic offense, Stephens was almost always used as the bondsman. For each person bonded by Stephens, a charge was made which exceeded the amount Stephens reported to his employer, Guillory Bonding Company. A reasonable trier of fact could find from the circumstantial evidence that the New Llano Chief of Police and Stephens split the unreported amount of money in some manner. In addition, Stephens knew that B & B Towing was paying money to the Chief of Police and, when B & B Towing collected bond money for Stephens, Stephens' secretary would come and pick it up.

Stephens does not deny the existence of the conspiracy so much as he argues that he was not a part of it and had no knowledge of it. Specifically, he claims that he was not a participant in the conspiracy between the Chief of Police and the B & B Towing, and he contends that he did nothing wrong by collecting the money for bond services. We disagree because the totality of the circumstances involving Stephens indicates a common plan and purpose. See United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (participation in a criminal conspiracy may be inferred from a development and a collocation of circumstances) (citation omitted), cert. denied sub. nom., 444 U.S. 846, 100 S.Ct. 91, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979), cert. denied sub. nom., 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). Construing the evidence in the light most favorable to the Government, we find that the evidence is sufficient to support the jury's finding of a conspiracy between Stephens and members of the New Llano police department.

B.

Stephens argues that the Government failed to establish that the conspiracy and acts of extortion affected interstate commerce. He contends that the payment of kickbacks between the towing company and the New Llano Chief of Police did not have any effect on interstate commerce, and that a tenuous connection exists between the payment of bonds for release from jail in New Llano, Louisiana and interstate commerce.

"By statutory definition, in order...